In California, there is no minimum age for getting married. Minors may marry even people much older than themselves so long as they have parental permission and a judge’s order. Outside of marriage, on the other hand, the age of consent to sex is 18. In response to this state of affairs, the legislature is currently considering SB273. As currently amended, the bill increases family court oversight of marriages that include a minor to ensure that there is no coercion, but it does not impose any age restrictions on who may enter into marriage. Prior to its amendment, as originally proposed by Senator Jerry Hill, the bill would have barred marriage for anyone under the age of 18, but his proposal encountered opposition from groups such as the ACLU and Planned Parenthood as well as from fellow legislators. In this column, I will consider the merits of the California approach to juvenile marriage.

The Current Law

As it currently exists (and as it would exist with some refinements even if the amended bill under consideration were to pass), California law permits children to get married, either to other children or to adults who are perhaps many years their senior. As there is no age limit, in theory, a six-year-old could get married, provided he or she could get parental permission and the order of a judge approving the marriage. This seems unlikely, of course, but the law makes it a possibility, which is disturbing. Typically, it is teenagers, ages fifteen to seventeen, who would seek permission to marry. The reasons vary and include cultural and religious norms as well as an unplanned pregnancy. One reason that is particularly noteworthy is an effort to avoid statutory rape charges.

Consider this last reason for marrying. Say a man of 30 intends to have intercourse with a girl of 15. That act is criminal under California law and would subject the man to potential conviction and punishment for statutory rape. So the 30-year-old man marries the 15-year-old child, with the permission of a (perhaps misguided) parent and a judge (who may be willing to defer to the wisdom of the child’s parent). Now, the 30-year-old man may freely have sex with the 15-year-old child, not once or a few times, but throughout the time that they remain married.

There is something very strange about this. The rationale for the statutory rape law is that a person under the age of 18 is not mature enough to give true consent to sexual activity. We know that children’s brains are not finished developing (even at age 18) and that the ability to bring one’s better judgment to bear upon a decision to have sex is not fully online at younger ages. The law thus deems consent from an underage person as not meaningful and accordingly considers any sex with the person to be essentially nonconsensual, i.e., a rape.

Yet California law no longer concerns itself with these facts about the biological immaturity of people under the age of 18 once a child is married. The absence of true consent no longer matters, because the child has committed herself to her would-be assailant for life. And California permits this to go on because a parent and a judge have given consent.

Marital Rape Exemption and Parental Consent to Sex

Though not precisely the same, the law in California in some ways resembles the old marital rape exemptions that held that so long as a victim was married to her rapist, his act of rape was not considered a crime. In the case of a minor in California, an act that would otherwise be considered a rape (because we think a child is incapable of consent) is suddenly no crime at all simply because the victim is married to the perpetrator. If one believes in the statutory rape law and its rationale, then one is effectively exempting a whole category of rapes from prosecution in virtue of the fact that the perpetrators have married their victims. This is offensive, and it is more than a little disappointing that the ACLU and Planned Parenthood played a role in eliminating the proposed age restriction from the bill that the California legislature is considering.

In addition to being reminiscent of the marital rape exemption, the California law as it now stands has the bizarre effect of allowing parents and judges to consent to a child’s having sex (with either another child or an adult who may be many years the child’s senior). Consider the fact that the child is incapable of real consent, so we deem her (or his) saying “yes” as meaningless. The only people with the capacity to consent who are in fact consenting are, then, the child’s parent and a judge. In one respect, this is even worse than the marital rape exemptions of old. Under the old law, the one way in which a man would be held accountable for the rape of his wife was if he brought in another man to have sex with her against her will, essentially consenting to someone else having sex with his wife. In California, by contrast, a girl’s father and a judge can give consent on a child’s behalf to a third party (the older man, in our hypothetical case) having sex with the child, sex that is otherwise understood to be rape. In this case, moreover, the consent is blanket and therefore permits the repeated victimization of the child by the third party in question.

Questioning the Age of Consent?

There are those, of course, who believe that the statutory rape law mistakenly deems consensual sex to be nonconsensual. They perhaps would prefer to have a lower age of consent than 18. Maybe that is where those who oppose the reform of the child marriage allowance should be putting their energy. But at least for the moment, California considers 18 to be the minimum age at which a young person has the capacity to give real consent to a sexual encounter. And though we often defer to a parent’s wishes regarding a child, it seems inappropriate to have a parent (and a judge) deciding that someone who is too immature to have sex under the law is mature enough to marry and have sex. The amended bill under consideration attempts to increase family court oversight to ensure against coercion, but the statutory rape law represents the view that sex with a minor is inherently coercive, simply in virtue of the child’s youth. It is therefore not possible to ensure against the built-in coerciveness of a sexual relationship between a child and another child or an adult.

Analogy to Abortion

In the context of abortion, the U.S. Supreme Court has approved of laws that require parental consent for a minor to terminate a pregnancy, provided that a judge can override a parent’s refusal for a very mature minor or a minor for whom termination is in her best interests. This requirement of parental consent is problematic, because it holds that someone who is presumptively immature may be forced by a parent (perhaps with the assistance of an approving judge) to carry a pregnancy to term. If a child is immature, then she is arguably less equipped to endure a pregnancy than an adult woman. Yet the law may allow her parents to withhold their consent to an abortion, thereby forcing her to remain pregnant against her will, precisely because she is so young.

The California underage marriage law is resonant with the child pregnancy precedents. In both cases, we have a child who is in a situation that we believe no child should be in, whether it is a pregnancy or a potential sexual encounter. And in both cases, we permit a parent to decide, where the child cannot decide on her own, that either compelled pregnancy or effectively nonconsensual sex is acceptable. There are cultural norms and religious practices that may find child marriage, child sex, and child pregnancy to be something positive. But California has an obligation to enforce broader norms about children’s rights and the importance of real consent to a sexual relationship. It is unfortunate that the amended SB273, even if passed, will no longer do so.